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GAZETTE
DECEMBER 1988
AIDS in the workplace
Against a background medical
prediction of ten million cases of
HIV infection world-wide by the
end of this decade, the Inter-
national Bar Association meeting
last m o n t h in Buenos A i r es
addressed itself in its section
'Medicine and Law' to some of the
legal issues already apparent,
including AIDS related problems in
the workplace.
While most people have come to
realise that there is no risk of
transmission of the AIDS virus in
o r d i na ry soc i al or w o r k p l a ce
s e t t i n g s, a r e c ent s u r v ey in
Philadelphia brought home the
importance of a proper approach by
employers to the problem. The
s u r v ey s h o w ed t he 10% of
company officials would fire an HIV
infected worker, 16% would refuse
to work w i th such an employee,
and 3 8% would try to restrict
by
Ni cho l as J. Kearns
Barrister-at-Law
c on t a ct be t ween the i n f ec t ed
pe r son and o t her emp l oyees,
despite the illegality of such
behaviour in the U.S. Less than
3 0% of companies there have in
place a policy or set of guidelines
for dealing w i t h A IDS in the
workplace, although AIDS has been
identified as the number one socio-
economic concern of employees,
above the federal budget deficit,
drug and alcohol abuse, and job
security.
In terms of the appropriate legal
response, it is instructive to look at
wh a t has happened in the U.S.
Significant steps have been taken
at State and Federal level to outlaw
discriminatory practices against
people w i th HIV. The approach has
been to treat AIDS and any related
c o n d i t i on as a ' d i s ab i l i t y' or
'handicap' w i t h in existing anti-
handicap discrimination legislation.
The Vocational Rehabilitation Act
of 1973 prohibits discrimination by
institutions or contractors who
receive federal funding against a
disabled person simply because he
has a physical handicap, providing
that person is otherwise qualified
and capable of working and does
not pose a direct threat to the
health or safety of others.
In a milestone decision in March,
1987, the U.S. Supreme Court, in a
case wh i ch dealt specifically w i th
tuberculosis as a handicap (but
wh i ch was also considered applic-
able to those w i th AIDS) held that
persons w i th contagious diseases
were protected under the Act.
Congress subsequently codified
this ruling in the Civil Rights
Restoration Act passed in March of
this year.
Parallel w i t h this development, a
significant number of States have
passed or extended their anti-
d i sc r imi na t i on laws to protect
persons w i th HIV infection. A
typical example can be seen in
legislation enacted in Rhode Island
in July wh i ch prohibits discrimina-
tion against HIV positive personnel
or those perceived to be infected in
h o u s i n g, emp l o y me n t, pub l ic
accommodation, granting of credit
and delivery of services. As in other
States, the measure also prohibits
HIV testing as a condition of
employment, except where infec-
tion would " cons t i t u te a clear and
present danger" of transmission to
others. Many statutes also require
reasonable workplace accommo-
dation of handicapped individuals.
Both presidential candidates in the
recent U.S. election were com-
mitted to supporting the Americans
w i th a Disability Bill, also sponsored
by Teddy Kennedy, wh i ch would
extend anti-discrimination measures
right across the private sector and
which, when enacted, will ensure
that every U.S. citizen is adequately
protected under the law.
The EC, in its Communication on
the fight against AIDS in February,
1987, s t r es sed t he need for
Commun i ty action in relation to
equal access to employment. In
this respect, it is perhaps surprising
to discover that there is no anti-
handicap discrimination legislation
in Ireland. In May of this year, the
Department of Finance issued a
policy document on AIDS in the
public service wh i ch provides that
employees who are HIV positive or
who suffer from AIDS will be
retained in their job for as long as
they can perform their duties to an
acceptable standard. The I.C.T.U.
has also issued guidelines to trade
unions to help w i th practical issues
that may arise. This leaves a very
big gap where some form of legis-
lation is required to comply w i th EC
requirements and to bring Ireland
even partially into line w i th the US
position. It is likely t hat the
Employment Equality Act, 1977
could be recast so as to extend its
p r o t e c t i on and p r ocedu r es to
persons w i th HIV infection, subject
to the provision that the person be
fit to carry out the duties of the job
and is not a source of danger to
himself or others. Also, the list of
persons deemed to have been
unfairly dismissed under the Unfair
Dismissals Act could readily be
enlarged to include a dismissal
wholly or mainly resulting from the
employee's status as a person w i th
HIV infection. It cannot be stressed
often enough that a person w i th
HIV i n f e c t i on may be t o t a l ly
asymptomatic and remain so for
many years.
In Buenos Aires the meeting of
the Committee on Medicine and
the Law passed a resolution wh i ch
has now been sent forward for
consideration by the Council of the
I.B.A. and which provided as follows:-
1. That all member States bring
forward effective legal measures
to ensure equal access to employ-
ment for persons w i th HIV.
2 That the I.B.A. recognises AIDS
and HIV infection as a disability
or handicap in respect of wh i ch
legislation can be introduced to
prohibit discrimination against
HIV positive persons in housing,
employment, public accommo-
dation, granting of credit and
delivery of services.
3. HIV testing as a condition of
employment should be prohibited
except where the absence of
AIDS or HIV infection is a bona
fide requirement of the job.
4. Employers should be encouraged
to make reasonable workplace
a c c ommo d a t i on for persons
w i th HIV infection.
5. Employers should be encouraged
to put in place guidelines and
educational programmes for deal-
ing w i th AIDS in the work-
place.
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